ASBESTOS MANAGEMENT

ASBESTOS MANAGEMENT

Ron Reid, Partner

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What is Asbestos?Asbestos is the name used for a range of natural minerals. There are three main types of asbestos: blue (crocidolite); brown (amosite); white (chrysotile).The type of asbestos cannot be identified just by its colour.Some products have one type of asbestos in them while others have mixtures of two or more All types of asbestos can be dangerous


Why is it dangerous?

• Asbestos is made up of thin fibres. Asbestos fibres are only dangerous if they are made airborne and breathed in.

• The fibres that are breathed in can become stuck in the lungs and damage them. This can cause scars that stop the lungs working properly (asbestosis), or it can cause cancer. These diseases can take from 15 to 60 years to develop and there is no cure for any of them.


Where do you find asbestos?You are most likely to find it in installations built or refurbished before 2000. The most common uses for asbestos were:

• loose packing between floors and in partition walls; • sprayed ('limpet') fire insulation on structural beams and girders; • lagging, eg on pipework, boilers, calorifiers, heat exchangers, insulating

jackets for cold water tanks, around ducts; • asbestos insulation board (AIB), eg ceiling tiles, partition walls, soffits,

service duct covers, fire breaks, heater cupboards, door panels, lift shaft linings, fire surrounds;

• asbestos cement (AC), eg roof sheeting, wall cladding, walls and ceilings, bath panels, boiler and incinerator flues, fire surrounds, gutters, rainwater pipes, water tanks; other products, eg floor tiles, mastics, sealants,

• textured decorative coatings (such as artex), rope seals, gaskets (eg pipework), millboards, paper products, fire doors, cloth (eg fire blankets), bituminous products (roofing felt).


Who is likely to be exposed to asbestos fibres?

Anyone who disturbs asbestos containing materials by working on them or near them.


The Control of Asbestos Regulations 2006

• These Regulations bring together the three previous sets of Regulations covering the prohibition of asbestos, the control of asbestos at work and asbestos licensing.

• They continue the ban introduced for blue and brown asbestos in 1985 and for white asbestos in 1999. The ban applies to new use of asbestos. If existing asbestos containing materials are in good condition, they may be left in place, their condition monitored and managed to ensure they are not disturbed.


Types of Property Covered

• Non-Domestic Premises – commercial, industrial and public buildings as well as common parts of domestic premises.

• Rented Sector – The duty to manage under the Regulations does not cover domestic premises but the Landlord still has a responsibility to reduce exposure and an asbestos inspection will need to take place before refurbishment, maintenance or demolition.

• Owner- Occupiers – May be responsible for maintenance of common parts of domestic property.


What's new in the Control of Asbestos Regulations 2006?• The duties under the Control of Asbestos Regulations 2006

are largely the same as under the previous regulations, but there are some important changes:

• There is a new, lower control limit (which no one must go over) of 0.1 fibres per millilitre of air measured over four hours.

• Work with textured coatings will, generally, not need to be done by a licensed contractor.

• Employers can no longer carry out work in their own premises with their own workers without a licence if the work would otherwise require a licence.

• The Regulations are clearer on training.


Do you need a licence?

• Work with the most dangerous asbestos‑containing materials (which give off high fibre levels when disturbed), requires a licence from the Health and Safety Executive (HSE).

• Very minor work (takes one person no more than one hour, or more people no more than two hours in any seven‑day period) does not require a licence.

• A licence is not required for work when a risk assessment confirms that the exposure will not go above 0.6 fibres per millilitre in any ten minute period or go over the control limit and the work involves certain materials.


When do the Regulations apply?

The Regulations apply to all work with asbestos materials carried out by employers, the self‑employed and employees. They apply to all work with asbestos whether it requires a licence or not.


Managing asbestos in buildings (regulation 4)• Whoever has control of a building has a duty to

manage the asbestos in their buildings. • The duty holder has to take reasonable steps to find

out if there are materials containing asbestos in the premises and, if so, how much, where they are and what condition they are in.

• Usually done by survey. The results of all types of survey should be recorded and the information provided to anyone who may work on, or disturb, these materials


Managing asbestos in buildings (regulation 4)• A suitable and sufficient risk assessment should be

made before carrying out any work which may expose employees to asbestos.

• Duty holders need to manage the risk from asbestos and ensure that an assessment is made as to whether asbestos is, or may be, present in the building. This includes where the asbestos is, or is assumed to be and what condition it is in. It should always be assumed that asbestos could be present until a full survey is done.


Planning Work (Regulation 7)

• No work should be carried out with asbestos unless a written plan has been prepared of work detailing how the work is to be carried out.


Information, Instruction and Training (Reg 10)• Must give adequate training to those who are or may be

exposed.• Training must be given at regular intervals. This should make

them aware of (amongst other things):– the properties of asbestos, its health effects and the

interaction of asbestos and smoking; – the type of materials likely to contain asbestos; – what work could cause asbestos exposure and the

importance of preventing exposure; – how work can be done safely and what equipment is

needed; – emergency procedures; – hygiene facilities and decontamination.


Preventing or Reducing Exposure (Reg 11)

Prevent exposure so far as is reasonablypracticable. If exposure remains above the control limit:• Inform worker concerned• Ensure work does not continue and

take action• Ensure action effective and controls

properly maintained and used


Health Records and Medical Surveillance (Reg 22)Apart from a few exceptions, where employee isexposed:

• Keep a health record (to be kept for 40 years)

• Arrange medical surveillance

• Arrange medical examinations


Summary of Action Required• A dutyholder has the following duties:• The prevention or control of exposure from work activities,

including training and emergency procedures to deal with unplanned disturbances.

• Asbestos materials must be managed to prevent or control exposure.

• If an incident has already occurred, assess what went wrong and how it to prevent it happening again.

• Ensure high risk work is carried out by those holding a licence.

• Significant uncontrolled disturbances should be reported to the HSE as a dangerous occurrence under RIDDOR.


Health and Safety ExecutiveEnforcement• Expectation that prosecutions will be taken without waiting for

the occurrence of a specific asbestos incident. • Enforcement action will be considered where :

– no survey and/or no management plan– exposure or prospects of exposure to significant risk from

asbestos during maintenance– those using the building liable to be exposed from

asbestos containing materials in a poor condition– no information or training for those liable to disturb

asbestos


HSE Inspectors Performance IndicatorsPrecautionary approach:• Is there an asbestos record?• Is a responsible person?• ACMs known with system to check records?• Written procedures for task?• Remedial action taken to deal with damaged ACM

identified?• Appropriate Training given?


HSE Performance Indicators

Dutyholders Assessment of Asbestos:

• All documentary evidence in place and checked?• Employee consultation / involvement• Survey quality and accuracy• Information recorded?• Risk assessment of ACMs carried out and recorded?


HSE Performance Indicators

The Written plan :• Identifies areas containing ACMs• Responsible person appointed to co-ordinate• Deals with management• Timetable to implement plan• Investigation and monitoring procedures• Mechanism to inform employees and contractors of

location of ACMs


Potential Consequences of Breach• Investigation by the HSE – prosecution, prohibition

notice, improvement notice.• Civil claims – may take between 10 – 60 years to

develop actionable condition.• Adverse publicity – Brand risk• Effect on employee and contractor relationships• Cost of investigation, remedial steps and loss of

management time


What and How to tell tenants• Giving clear concise and accurate information will help to

allay any unfounded fears• Suggest tenant briefing well in advance of work• Tell them

– Asbestos – What it is and the risks to health if damaged / disturbed

– Where it is and why– Your obligations as landlord– What it means for them (minor disturbance to temporary

rehoused)– Invite feedback, comments and give contact details


Some Key Risk Areas

• Workplace Transport (including Work

Related Road Risk )• Construction Projects• Falls from height• Fire


Road Safety Act 2006• New offence- Death by Careless Driving with

up to 5 years imprisonment• Guidelines give definitions of “avoidable

distractions” which aggravate offence –- using a mobile phone- eating or drinking at wheel- applying make-up

• Unlicensed or uninsured drivers – now face imprisonment up to 2 years.


Work Related Road Risk

Current examples of police interest –• Fatal after office party• Suicide• Phone records of drivers• Fitness of “private” vehicle• HGV seatbelt wearing


HSE PRIORITIES

Priority sectors -• Construction• Public Services


THE NINE HSE PRIORITY TOPICS• Workplace transport• Work related stress• Slips and trips• Falls from height• Musculoskeletal disorders• Noise • Hand - Arm Vibration• Disease reduction (specifically cancer, dermatitis and

occupational asthma)• Absence management, return to work and

rehabilitation


TRENDS

• More emphasis on actions of individuals• Vast increase in interviews of individuals not

just at manager level• Conflicts of interest


TRENDS

• More emphasis on competency of individuals• Both employees and contractors must be properly

trained• Third party accreditation is increasingly important

e.g. Section 8 of each guide under fire safety order – “third party quality assurances………. means of demonstrating compliance with the law”


PENALTIES• Trend is for higher fines.

• More cases referred to Crown Court even if guilty plea.

• Court of Appeal held acceptable for fine to wipe out offending Company’s annual profit (R –v- F J Cholcroft Construction 2008).


HEALTH & SAFETY(OFFENCES) ACT

• Increases health and safety penalties– Fines in Magistrates’ Courts from £5,000.00 to

£20,000.00– Most health and safety offences now

imprisonable.• In force for offences after16th January 2009.• Guidelines to be issued by Sentencing Guidance

Council.• Possible challenge under Human Rights legislation

to reverse burden of proof?


HEALTH & SAFETY(OFFENCES) ACT

What are the implications?• More cases retained by Magistrates• Defendants fight harder• Decrease in guilty pleas• Increased “technical” defences• Difficult decisions for the Health and Safety

Executive re. individual prosecutions


Corporate Manslaughter• Offence applies whole of UK

• Applies to nearly all public sector – Crown immunity extremely limited

• Failure of organisation rather than individual

• Must be failure by Senior Management – culture crucial

• Unlimited fine (linked to turnover?)

• Publicity Orders


Corporate Manslaughter – a year on

• Police now involved in every fatal• Attitude is “one step away from murder”• Police liaising with HSE during investigation so they

are lengthy interviews. HSE priming police questions• Police taking wide view of who are “senior

management” – Supervisors upwards arrested• Effect on board, managers & workforce


"A concern for safety which is sincerelyheld and repeatedly expressed butnevertheless, is not carried through intoaction, is as much protection from dangeras no concern at all"

Clapham Junction railway accident inquiry

ASBESTOS MANAGEMENT

Ron Reid, Partner

ASBESTOS MANAGEMENT

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